APPELLATE COURT OPINIONS

This is an appeal from a trial court’s grant of summary judgment in a negligence case. Defendant’s truck collided with Plaintiff’s car causing Plaintiff serious injuries. Plaintiff sued Defendant for injuries stemming from the accident, which he alleged was proximately caused by Defendant’s negligence. Defendant filed a motion for summary judgment. It was undisputed that the accident occurred after Plaintiff’s car entered an intersection and proceeded to turn left across a lane of oncoming traffic despite the fact that the traffic signal facing him was red. It was further undisputed that the traffic signal facing Defendant was green as he proceeded into the intersection from the opposite direction in his truck. Traffic cameras installed at the intersection captured video footage of the collision, which was admitted as evidence. Based on the video footage and other undisputed evidence, the trial court determined that no reasonable juror could conclude that Plaintiff was less than 50% at fault. Plaintiff appealed. We affirm.

A former tenant of Metropolitan Development and Housing Agency (“MDHA”) appeals the decision of the circuit court dismissing the case for failure to prosecute pursuant to Tenn. R. Civ. P. 41.02(1). We have concluded that the trial court erred in dismissing the case for failure to prosecute. The order is reversed and the matter is remanded to the trial court for further proceedings.

Petitioner, Antonio Lamont Scales, was convicted in Davidson County Criminal Court for the offenses of attempted second degree murder of one victim and reckless aggravated assault of another victim.  His co-defendant at trial was convicted of the same offenses.  On appeal, Petitioner challenged the sufficiency of the evidence to sustain the convictions, the trial court’s failure to provide the “missing witness” instruction to the jury, and the sentences imposed by the trial court.  The convictions were affirmed, but the sentences were vacated and the case was remanded for resentencing.  See State v. Timothy Washington Lyons and Antonio Lamont Scales, No. M2009-02524-CCA-R3-CD, 2011 WL 300141, at *1 (Tenn. Crim. App. Jan. 18, 2011).  After resentencing, no further appeal was instituted by Petitioner.  His effective sentence after remand was twenty years, down from twenty-two years originally imposed by the trial court.  Petitioner subsequently filed a petition for post-conviction relief which was dismissed after an evidentiary hearing.  This appeal followed.  After a thorough review, we affirm the judgment of the post-conviction court.

I agree with the majority’s conclusion that the circumstances in this case do not warrant dismissal for failure to prosecute. However, because I find other grounds for dismissal from the record, I respectfully dissent. See Cont’l Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986). (stating Court of Appeals may affirm a judgment on a different ground than that relied upon by the trial court when the correct result was reached). 

Defendant, Randall T. Beaty, was indicted for first degree felony murder and aggravated child abuse.  After a jury trial, he was convicted of reckless homicide and aggravated assault, which were charged to the jury as lesser-included offenses.  He received consecutive sentences of four years for reckless homicide and six years for aggravated assault, for an effective ten-year sentence to be served in the Department of Correction.  On appeal, Defendant argues: (1) that the evidence was insufficient to support his convictions; (2) that the trial court erred by allowing Detective Bachman to testify in violation of the rule of sequestration; (3) that the trial court erred by excluding a proffer by Amber Peveler; (4) that the trial court erred in failing to merge his convictions on double jeopardy grounds; and (5) that the trial court erred by ordering consecutive sentencing.  As to the alleged violation of the rule of sequestration, we hold, pursuant to State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010), that the State had the rightunder Tennessee Rule of Evidence 615 to designate an investigating officer as exempt from sequestration and the designated investigating officer can remain in the courtroom during the testimony of other witnesses.  We further conclude that, because the jury was instructed that both knowing or intentional aggravated assault and reckless aggravated assault were lesser-included offenses of aggravated child abuse, but the verdict form listed only aggravated assault without specifying the mens rea with which Defendant acted, Defendant’s conviction for aggravated assault must be reversed and the case remanded for a new trial on the offense of knowing aggravated assault.  After a thorough review of the record, we determine that there was no error as to Defendant’s remaining issues and affirm the conviction for reckless homicide and the judgment in all other respects.

This is a divorce case. Eva L. Hines (Wife) filed a complaint for divorce from Terence J. Hines (Husband) while he was incarcerated in Arkansas. Husband was released from prison several days before the scheduled date of trial. Before and after his release, Husband asked that the case be continued so he could secure an attorney. On the original trial date, the court granted Husband’s request and continued the case for two weeks. On the morning of the rescheduled trial date, Husband called and advised the court that he would be late; in response, he was told that trial would begin as scheduled. Husband did not appear at the courthouse in time for the trial. The trial proceeded in his absence, and the court entered a final divorce decree. Husband filed a Tenn. R. Civ. P. 60.02 motion requesting that the court set aside the final decree, which he says substantively amounts to a default judgment. He seeks a new trial. The court denied his motion. Husband appeals. We affirm the trial court’s judgment denying his Rule 60 motion

The defendant, Kenneth Leigh McPeak, appeals the revocation of the probationary sentence imposed for his Rutherford County Circuit Court convictions of attempted rape.  Discerning no error, we affirm.

Fredrick Sledge (Petitioner), an inmate in the custody of the Tennessee Department of Correction (TDOC), challenges TDOC’s calculation of his release eligibility date. The chancery court (the trial court) granted TDOC summary judgment, finding that “the undisputed facts and law establish [Petitioner’s] sentence has been correctly calculated.” Because the criminal court’s order sentencing Petitioner awarded him 3,521 days of pretrial jail credit, while TDOC’s calculation of his release eligibility was based upon only 516 days of credit, there is a genuine issue of material fact regarding the correct calculation of his release eligibility date. We vacate the trial court’s summary judgment and remand for further proceedings.
 

The petitioner, Frederick Greene, was convicted of first degree (premeditated) murder and received a sentence of life imprisonment. The petitioner appeals the denial of his petition for post-conviction relief. On appeal, he contends that he received ineffective assistance of counsel. Following our review, we affirm the judgment of the post-conviction court.

Petitioner, James Anthony Burgess, appeals the denial of his petition for writ of error coram nobis.  Because Petitioner has not identified any newly discovered evidence, we affirm the decision of the coram nobis court.

The Defendant, Kendra Mahan, appeals as of right from the White County Criminal Court’s revocation of her six-year probationary sentence and order of total  incarceration relative to her guilty-pleaded convictions for attempted introduction of contraband into a penal institution, aggravated burglary, and theft of property valued over $500.00 but less than $1,000.00.  The Defendant contends that she was not afforded due process because the trial court failed to make sufficient findings of fact.  The Defendant also submits that the evidence presented at the revocation hearing was insufficient to establish that a violation of the conditions of her probation—either failure to pay court costs and restitution or a failed drug test—occurred.  Following our review, we affirm the trial court’s revocation of the Defendant’s probationary sentence, but we remand for entry of an amended revocation order reflecting credit for time served and for correction of the “original sentence length.”

The Petitioner, Rodney Patterson, appeals as of right from the Davidson County Criminal Court’s dismissal of his petition for post-conviction relief.  The Petitioner contends that he received ineffective assistance from his trial counsel because (1) trial counsel failed to inform him that his conviction for vandalism of property valued at more than $500 but less than $1,000 was a felony rather than a misdemeanor; and (2) trial counsel failed to inform him that his sentence was to be served consecutively to his sentence for another offense.  Discerning no error, we affirm the judgment of the post-conviction court.

Defendant, Gilberto Canales, Jr., was indicted for one count of aggravated rape. After a jury trial, Defendant was convicted of the lesser-included offense of rape. On appeal, Defendant argues that the evidence is insufficient to support his conviction, that the trial court erred by admitting hearsay evidence, and that the prosecutor committed prosecutorial misconduct by making misleading statements and arguing improperly admitted evidence during closing argument. After a thorough review, we affirm the judgment of the trial court.

The Defendant-Appellant, David Jerome Powell, entered an open guilty plea to theft of property valued at more than $500 but less than $1000, driving on a cancelled, suspended or revoked license, and driving on a cancelled, suspended or revoked license, third offense, with the trial court to determine the length and manner of service of his sentence. See T.C.A. §§ 39-14-103, 55-50-504. Prior to the sentencing hearing, Powell filed a motion to withdraw his guilty plea, alleging that he had a constitutional right to a jury trial. The trial court denied the motion, finding no “just and fair reason to allow him to withdraw the plea.” At the sentencing hearing a few days later, the trial court merged the conviction for driving on a cancelled, suspended or revoked license with the conviction for driving on a cancelled, suspended or revoked license, third offense. The court then sentenced Powell to consecutive sentences of six years with a release eligibility of sixty percent for the conviction for theft and eleven months and twenty-nine days for the conviction for driving on a revoked license, third offense, and ordered these sentences served consecutively to sentences Powell had received for three other convictions in other courts. Thereafter, Powell appealed the trial court's denial of his motion to withdraw his guilty plea. Upon review, we affirm the judgment of the trial court.

Father filed a petition to reduce child support. Mother sought to have their almost eighteen-year-old daughter testify that she did not intend to exercise visitation with Father to the extent previously ordered by the court after she turned eighteen. The court refused to let her testify. The trial court used the number of days of parenting time previously ordered in calculating child support instead of zero. The trial court also ordered Mother to pay a portion of Father’s attorney’s fees. Mother appeals these issues. We affirm the trial court as to the testimony of the child and the calculation of child support. We reverse the trial court’s award of attorney’s fees.

The petitioner, Jonathan Davis, appeals the summary dismissal of his second petition for writ of habeas corpus, which petition challenged his Maury County Circuit Court jury conviction of attempted aggravated robbery. Discerning no error, we affirm.

The petitioner, Antonio Byrd, appeals from the Shelby County Criminal Court’s denial of his motion to reopen his 1999 petition for post-conviction relief. Because the petitioner failed to comply with the statutory requirements for appealing the denial of a motion to reopen a post-conviction petition, we are without jurisdiction to hear the appeal, and the appeal is dismissed.

Plaintiff brought a malicious prosecution action against defendant. Defendant moved for summary judgment, which the trial court granted. Discerning no error, we affirm.

This is a negligence action. While attending a holiday-themed ice exhibit, the plaintiff slipped and fell at the top of an ice slide attraction that was a feature of the exhibit and sustained injuries to his arm. The plaintiff subsequently filed suit against the company that constructed the ice slide asserting various theories of negligence. After the company filed a motion for summary judgment in which it demonstrated that the plaintiff had not presented any evidence to support his claims, the plaintiff conceded that the company was entitled to summary judgment on all of his claims except those related to negligent design of the ice slide. In support of his assertion that the company breached a standard of care in designing the ice slide, the plaintiff relied solely on American Society of Testing Materials safety standards for children’s playground equipment. The trial court determined that because the standards were not applicable to the ice slide, the plaintiff failed to demonstrate how the company was negligent in designing the ice slide. The trial court granted the company’s motion for summary judgment. We affirm.

The Petitioner, Brandon S. Massengill, appeals the Claiborne County Criminal Court’s dismissal of his petition for post-conviction relief from his conviction for resisting arrest or stop and his six-month suspended sentence. The Petitioner contends that the post-conviction court erred by dismissing his petition on the ground that he was not in custody for purposes of the Post-Conviction Procedure Act. We reverse the judgment of the post-conviction court and remand the case for an evidentiary hearing on the merits of the petition.

The defendant, Andrew Brian Santora, appeals the trial court’s revocation of his probation. He argues that the evidence is insufficient to support the revocation and that the trial court should have imposed an alternative sentence. Following our review, we affirm the judgment of the trial court.

This appeal concerns a father's parental rights to his daughter. The trial court found clear and convincing evidence existed to support the termination of the father's parental rights on the statutory ground of abandonment when he willfully failed to visit the child for the four months preceding the filing of the termination petition. The court also found termination of the father's rights was in the best interest of the child. The father appeals. We affirm as modified.

Aggrieved of his Davidson County Criminal Court jury convictions of two counts of aggravated assault, the defendant, Brandon D. Forbes, appeals, challenging the admission of his prior conviction of aggravated robbery for impeachment purposes, the admission of certain testimony from a State’s witness, and the sufficiency of the convicting evidence.  Discerning no error, we affirm.

This is an interlocutory appeal as of right, pursuant to Rule 10B of the Rules of the Supreme Court of Tennessee, from the denial of a motion to recuse filed by Steve Allen Westberry ("Former Husband") in the parties' post-dissolution modification proceedings. Having reviewed the petition for recusal appeal filed by Former Husband, and finding no error in Trial Court's ruling, we affirm.

This is a termination of parental rights case. Father/Appellant appeals the termination of his parental rights on grounds of severe child abuse pursuant to Tennessee Code Annotated Section 36-1-113(g)(4) and persistence of conditions pursuant to Tennessee Code Annotated Section 36-1-113(g)(3). The child was found to be dependent and neglected by order of the Juvenile Court, and Appellant appealed the dependency and neglect finding to the Circuit Court. The ground of persistence of conditions requires a prior finding of dependency and neglect. However, our record does not reflect the status of Appellant’s appeal of the dependency and neglect order. In the absence of proof of full adjudication of the dependency and neglect appeal, we hold that the trial court erred in applying the ground of persistence of conditions. Accordingly, we reverse the termination of Appellant’s parental rights on that ground. Concerning the termination of Appellant’s parental rights on the ground of severe child abuse, the trial court’s order states only that Appellant “has sexually abused the child . . . pursuant to T.C.A. § 37-1-602 and that this sexual abuse constitutes severe abuse pursuant to T.C.A. § 37-1-102(b)(2[1]).” Because the code sections that the trial court relies upon contain numerous definitions of “child sexual abuse” and “severe child abuse,” in the absence of specific citation to the exact definition(s) relied upon, we cannot make a meaningful review of the trial court’s decision. Accordingly, we vacate the trial court’s termination of Appellant’s parental rights on the ground of severe child abuse and remand with instructions for the trial court to make specific findings as required under Tennessee Code Annotated Section 36-1-113(k).